Over at mercatus.org, Robert Nelson asks, Is the U.S. Senate Obsolete?

He answers by arguing two main points:

  • the U.S. senate has been the primary cause of usurpation by the federal government of powers traditionally (and constitutionally) reserved to the states
  • because of population growth, the power structure in the senate has changed, giving small states an even more disproportionate level of representation than what they had in the beginning.

I agree with his conclusion, but not his argument.  The U.S. Senate is indeed obsolete, but not because of the usurpation of power, or because of shifting power structure.

Let me insert the following caveat: I am not a lawyer.  However, the flip side of that is that U.S. law, particularly the constitution, was never intended to be for a special class and impenetrable to the masses – the philosophical foundations of U.S. law included the idea that any well-educated individual should be able to read and discern the meaning of the law.  Of course, this is a topic for another post on another blog, probably, so back to the topic at hand…

Firstly, the shifting power structure isn’t really shifting.  While the differences in population between large states and small states are wider (and widening) thus making the small-state representation in the senate respectively more powerful, it also makes them equally less powerful in the U.S. House.  This is as the founders designed it – it’s not broken.  It’s also the only way that the original small states could be coaxed into ratification of the constitution.

Secondly, the usurpation issue doesn’t necessarily mean the Senate is obsolete; it merely means that it is a power monger.  Power mongering is never obsolete.  Also, this usurpation wasn’t owing solely to the Senate, which – as I last recall – doesn’t have an enumerated power of usurpation.  Rather, our elected leaders have acted in various ways to make this happen at every level.  The Senate has certainly done it’s fair share of usurpation via legislation and treaty, but so has the house, as well as the executive.  The Supreme Court has also gotten in on the act; at times actively, and at other times, simply shirking its duties as a defender of the constitution.  Even the states have allowed the erosion of their sovereignty for a little bit of federal candy called “highway funding”, among others programs.

No – none of these point to the obsolecence of the Senate.  They are lamentable, but yet correctable with time (albeit it took us about 90 years or so to create this mess, and it will take probably as much time to unwind it all).

The Senate is obsolete because of the 17th amendment.

“Huh?”, you say.

The power structure between the federal government and the states was broken the moment that amendment was ratified, and state sovereignty was one of the bedrock supports of liberty in this country.  What’s so bad about the 17th?  Let’s have a look:

The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.

When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies:Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution. [Wikipedia]

It looks pretty benign, right?  It just says that the people of each state will elect two senators.  Remember, though, it’s an amendment.  What changed?  Article I, Section 3, Clause 1 of the Constitution:

The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote. [Wikipedia]

Do you see what happened here?  The Constitution was designed so that both the sovereign interests of  individuals was represented in the government through the U.S. House, and that the sovereign interests of the states themselves were represented in the U.S. Senate.  The 17th Amendment has taken representation of sovereign state interests, and placed them in the hands of a popular vote in each state.  The effect is essentially that states are no longer represented at all in the federal government; thus federalism is broken.  The people are now represented in the same way in two houses.

The Senate is obsolete because it’s redundant.  The way to fix it is not to abolish the U.S. Senate, but rather to re-establish representation of sovereign state interests in the federal government (in other words, put federalism back together again).  The way to accomplish this is to unravel the 17th Amendment.